At least 36 state legislatures are considering legislation that would allow citizens to opt out of a key component of President Obama’s health-care “reform” – an “individual mandate” requiring that all Americans have health insurance.

Both the House and Senate health-care bills require Americans to purchase health insurance or pay a penalty. The House bill establishes a fine based on percentage of a person’s income, while the Senate version creates a penalty as a flat fee or percentage of income, whichever is higher. Those refusing to get insurance could be found guilty of a misdemeanor crime, punishable by another fine or even jail time.

“The president’s proposal adopts the Senate approach but lowers the flat dollar assessments, and raises the percent of income assessment that individuals pay if they choose not to become insured,” a White House plan released in February states.

States rejecting ‘individual mandate’

According to the National Conference of State Legislatures, formal resolutions or bills have been filed in opposition to the individual mandate in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Hampshire, New Jersey, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, South Dakota, Tennessee, Utah, Washington, West Virginia, Wisconsin and Wyoming.

The National Conference of State Legislatures published this map showing states that have filed formal resolutions or bills in opposition to individual health-care mandates.

Also, as of March 4, Virginia became the first state to enact a new statute section titled, “Health insurance coverage not required.” In Arizona, voters will cast ballots on a constitutional amendment in November 2010 that would “preserve the freedom of all residents of the state to provide for their own health care.”

Lawmakers suggest approval of the legislation may spark a legal battle over states’ rights versus the federal government’s reach of power. The Boston Globe reported the measures could set the stage for “one of the greatest tests of federal power over the states since the civil rights era.”

“The administration is trying to shift from a government by social compact, agreement between elected officials and citizens, to a government where the leaders tell the subjects what to do,” Virginia Delegate Bob Marshall, chief sponsor of the measure in his state, told the Globe. “That is not what the American Revolution was about.”

The American Legislative Exchange Council, or ALEC, has sparked nationwide interest with its model “Freedom of Choice in Health Care Act: How Your State Can Block Single-Payer and Protect Patients’ Rights.” ALEC warns that forcing patients to enroll in one-size-fits-all plans would cause massive increases in spending and force policymakers to ration care as a cost-containment measure.

Is mandatory insurance constitutional?

Minnesota State Rep. Tom Emmer told the New York Times in September 2009 that lawmakers in his state have proposed a state constitutional amendment to protect citizens from government interference in their private health decisions.

“All I’m trying to do is protect the individual’s right to make health-care decisions,” Emmer said. “I just don’t want the government getting between my decisions with my doctors.”

He said an amendment wouldn’t prohibit anyone from participating in a federal health program. It would simply prevent them from being forced to enroll.

“[T]ell me where in the U.S. Constitution it says the federal government has the right to provide health care,” Emmer said. “This is the essence of the debate.”

During the Democratic presidential primary, Obama took a jab at Hillary Clinton over the individual mandate.

“The main difference between my plan and Sen. Clinton’s plan,” he said, “is that she’d require the government to force you to buy health insurance and she said she’d ‘go after’ your wages if you don’t.”

According to the Congressional Budget Office, or CBO, the federal government has never mandated that Americans purchase any good or service. In 1994, the CBO studied the individual mandate in Clinton’s universal health-care plan and found that it was an unprecedented requirement.

“A mandate requiring all individuals to purchase health insurance would be an unprecedented form of federal action,” the CBO report stated. “The government has never required people to buy any good or service as a condition of lawful residence in the United States. An individual mandate would have two features that, in combination, would make it unique. First, it would impose a duty on individuals as members of society. Second, it would require people to purchase a specific service that would be heavily regulated by the federal government.”

Opponents say the individual mandate is unconstitutional because the Constitution doesn’t grant the federal government power to fine citizens for refusing to purchase goods and services. Ken Klukowski, senior legal analyst with the American Civil Rights Union, explained in a Politico commentary why there is no constitutional basis for the individual mandate.

“People who decline coverage are not receiving federal money, so that mandate can’t fall under the spending part of the Tax and Spending Clause,” he wrote.

Article I of the Constitution authorizes excise and capitation taxes, and the 16th Amendment created the income tax. However, Klukowski contends that government health insurance cannot be considered an excise, capitation or income tax.

“It can’t be an excise tax because that’s a surcharge on a purchase, and here people are not buying anything,” he explained. “It can’t be a capitation (or ‘direct’) tax because that is a tax on every person in a state and must be equal for every person in the state; this would be a levy that some people would pay and others would not. And it can’t be an income tax because that must be based on personal income, not purchase decisions.”

He added, “All that’s left is the Commerce Clause. And the people who declined to purchase government-mandated insurance would not be engaging in commercial activity, so there’s no interstate commerce. That, in fact, is the government’s problem with them: Those people refuse to take the money or play the game.”

Likewise, the Congressional Research Service recently reported that determining whether an individual mandate is constitutional under the Commerce Clause “is perhaps the most challenging question posed by such a proposal, as it is a novel issue whether Congress may use this clause to require an individual to purchase a good or service.”

Klukowski wrote that if Obama wants a plan that forces Americans to purchase insurance, he will need to “persuade the nation to adopt a constitutional amendment creating a right to health care.”

He added, “You might have better odds of getting struck by lightning.”

Sen. Orrin Hatch, R-Utah, member of the Senate Judiciary Committee and outspoken critic of the individual mandate, told CNS News that if Congress can force Americans to buy health care, or mandate the purchase of anything, “we’ve lost our freedoms, and that means the federal government can do anything it wants to do to us.”